December 14, 2015


We hold that the drug-trafficking recidivist provision in N.J.S.A. 2C:43-6(f) cannot be the basis to impose a mandatory extended term for the offense of drug trafficking within 500 feet of a public housing facility under N.J.S.A. 2C:35-7.1. N.J.S.A. 2C:43-6(f) has never been amended to add the subsequently-enacted N.J.S.A. 2C:35-7.1 to its list of drug trafficking offenses for which an extended term is required. The prosecution may move to apply N.J.S.A. 2C:43-6(f) to the N.J.S.A. 2C:35-5 count, and the resulting minimum term of parole ineligibility will survive the merger of that count with the N.J.S.A. 2C:35-7.1 count. Because defendant attempted to explain away the cash in his pocket by using his post-arrest statement that "he was unemployed and that he won the money in Atlantic City gambling," the prosecutor's reference to his statement and his unemployment was not reversible error.

No comments: